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TMI Blog2016 (5) TMI 925X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 80-IB of the Act. In view of this, we direct the Assessing Officer to give the assessee the benefit of these additions, if the assessee is eligible for deduction under section 80-IB of the Act, since the issue was not in question before us, we are not aware whether the assessee is eligible for said deduction or not. - Decided in favour of assessee for statistical purposes. - ITA No.21/Chd/2016, ITA No.22/Chd/2016 - - - Dated:- 18-4-2016 - SHRI H.L.KARWA, VICE PRESIDENT AND MS. RANO JAIN, ACCOUNTANT MEMBER For The Appellant : Shr i Amr inder Singh For The Respondent : Shr i Manj i t Singh, DR ORDER PER RANO JAIN, A.M. : These two appeals filed by the same assessee are directed against the separate orders of learned Commissioner of Income Tax (Appeals), Panchkula, both dated 2.11.2015 for assessment years 2007-08 and 2008-09 respectively. 2. Since the facts and circumstances are identical in both the appeals, the same were heard together and are being disposed off by this consolidated order for the sake of convenience. We will first take the appeal of the assessee in ITA No. 21/Chd/2016. ITA No.21/Chd/2016 : 3. The ground Nos.1 and 4 are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Further, it was argued that all the judgments referred to are in the context of employer's contribution to EPF and not with respect of employees' contribution. 10. We have heard the learned representatives of both the parties, perused the findings of the authorities below and considered the material available on record. From the perusal of the details of deposits in EPF, the employees' contribution, it cannot be doubted that all the deposits have been made before the due date of filing of the income-tax return by the assessee, though admittedly these were made after the due date of such deposits provided under the EPF Act. These facts have not been disputed by any of the lower authorities, nor before us any such argument was made. In this background, only issue to be decided by us is whether the employees' contribution to EPF made by the assessee before the due date of filing of income-tax return is allowable or not. In order to get to the root of the controversy, first we have to understand the scheme of the Income Tax Act in this regard. 11. Since we are dealing only with the issue of employees' contribution to EPF, we will restrain ourselves to only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyer by way of contribution to any provident fund or superannuation fund or gratuity fund or any other fund for the welfare of employees, [or] shall be allowed (irrespective of the previous year in which the liability to pay such sum was incurred by the assessee according to the method of accounting regularly employed by him) only in computing the income referred to in section 28 of that previous year in which such sum is actually paid by him : 19. Since the section starts with the non obstante, clause, without referring to any other provision of the Act, we can very easily confer that such sums will now be allowed only on the basis of actual payment, i.e. in the year in which it has actually been paid to that fund etc. 20. Now, there is also a proviso to section 43B of the Act, which reads as under : Provided that nothing contained in this section shall apply in relation to any sum [ ast; ast; ast;] which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of second proviso to section 43B and the amendment to first proviso by Finance Act, 2003, bringing about uniformity in payment of tax, duty, cess and fee on one hand and contribution to employees' welfare funds etc. on the other hand are curative in nature and hence retrospectively applicable. 25. In view of the above, we understand that the employees' contribution to EPF paid by the assessee before the due date of filing return of income is an allowable expenditure. For this, we are also supported by the judgment of the Jurisdictional Punjab Haryana High Court in the case of CIT Vs. Lakhani India Ltd. (2010) 39 DTR 210 (P H) and also a latest judgment in the case of CIT Vs. Mark Auto Industries Ltd. (2013) 358 ITR 43 (P H) . 26. We would also like to refer to a judgment of Delhi High Court in the case of CIT Vs. Aimil Ltd. Ors (2010) 321 ITR 508, which was in favour of the assessee with regard to allowability of employees contribution. The case was delivered following the judgments of Hon'ble Supreme Court in the case of CIT Vs. Vinay Cement Ltd. (2007) 213 CTR (SC) 268 and those of Delhi High Court in the cases of CIT Vs. Dharmendra Sharma (2007) 297 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the assessee is allowed. 33. The ground No.3 raised by the assessee reads as under : 3. That in the facts and circumstances of the case the Ld. Commissioner of Income Tax (Appeals), gravelly erred in upholding the addition of ₹ 40,400/- made by the ld. Assessing Officer on the ground that the assessee had made the payments for expenses in cash in violation of provisions of section 40(A)(3) [sic] of the I.T. Act, 1961. 34. Briefly, the facts are that the assessee has made payment amounting to ₹ 2,02,006/- being trailor expenses and hydra crane repairs in cash in violation of provisions of section 40A(A)(3) [sic] of the Act. The Assessing Officer disallowed an amount of ₹ 40,400/- being 20% of such payments. 35. Before the CIT (Appeals), it was stated that though this amount may be disallowable but since it becomes gross income and deduction under section 80-IB of the Act is allowable on the same. The CIT (Appeals) decided the issue against the assessee stating that the assessee had failed to correlate the payments in cash as against their respective bills. 36. The learned counsel for the assessee while arguing before us limited his prayer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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